STATE OF NORTH CAROLINA
v
.
Catawba County
No. 01 CRS 58884
JOHN HENRY ABRAMS
Attorney General Roy Cooper, by Assistant Attorney General V.
Lori Fuller, for the State.
Thorsen Law Office, by Haakon Thorsen for defendant-appellant.
STEELMAN, Judge.
On 10 December 2001 defendant shot Bryan Harris (Harris), the
brother of his then girlfriend, Misty Johnson (Misty), in the face
with a .22 caliber handgun. The incident was instigated by
defendant's belief that Harris has stolen a $100.00 bill from his
wallet earlier that day. Following the alleged theft, defendant
became angry and began throwing things around the house that he
shared with Misty. Misty then suggested that she go and confront
her brother about the missing money. Misty testified that she
wanted defendant to accompany her, but that it was her intention
that defendant remain in the car while she confronted Harris.
Defendant brought with him a .22 caliber pistol, which he claimed
was for protection. Defendant did not remain in the car. Mistywent to the door of the house, asked Harris to come out on the
porch, and asked him if he had taken defendant's money. At that
time defendant climbed the steps and inquired of Harris: “M*****
F*****, where's my money?” Defendant then fired two shots, one
passed over the head of Harris and the other went straight into
Harris' right eye. Harris survived the shooting, but lost his eye.
Because there was no phone where Harris lived, Misty drove to her
grandparents' house to call 911. Defendant got in the car with
her, and took off in her car when she went inside to call 911.
Defendant testified that he threw the gun off a bridge. The
following day, defendant turned himself in to police.
On 11 February 2002, defendant was indicted for the attempted
first-degree murder of Harris. Defendant and the State reached a
plea arrangement whereby defendant agreed to plead guilty to
assault with a deadly weapon with intent to kill inflicting serious
injury with an agreed upon sentence of 60-81 months (the defendant
also agreed to plead guilty to a separate drug charge with a
consecutive agreed upon sentence of 12-15 months). The plea was
presented to Judge Richard D. Boner on 30 January 2003. Judge
Boner rejected the plea agreement and continued the matters for
trial. The attempted first-degree murder charge came on for trial
before Judge Patti at the 21 April 2003 session of Catawba County
Superior Court.
At trial, defendant testified that he intentionally shot over
Harris' head to frighten him, and that the recoil action of the
pistol caused him to accidentally fire a second shot immediatelyafter the first shot. Harris and Misty both estimated a two second
pause between shots. Further, they both testified that defendant
first aimed the gun at Harris' head, raised the gun and fired over
Harris' head, then lowered the gun to Harris' head again and fired
the second shot.
At the jury charge conference defendant asked the trial court
to instruct the jury on accident. The trial court denied this
request. The defendant further requested an instruction on assault
with a deadly weapon inflicting serious injury, arguing that it is
a lesser included offense of attempted first-degree murder. The
trial court also denied this request. The jury convicted defendant
of attempted first degree murder, and he was sentenced from the
mitigated range to 124-158 months imprisonment. Defendant appeals.
In defendant's first assignment of error, he argues that Judge
Boner committed error or plain error by refusing to accept the plea
agreement reached by defendant and the State. We disagree.
Defendant contends that Judge Boner was prepared to accept the
plea agreement until the State provided false information
concerning Harris' medical bills. Specifically, defendant alleges
that the State advised the court that Harris had $400,000.00 in
unpaid medical bills, when in fact the true amount was just under
$40,000.00. Defendant contends that if the trial court had known
the correct amount of the unpaid medical bills, it would have
accepted the plea agreement. Defendant further contends that the
trial court violated N.C. Gen. Stat. § 15A-1023(b)(2004) because it
did not inform the parties as to the reason it rejected the pleaagreement, and did not give the defendant and the State an
opportunity to amend the agreement.
A plea arrangement involving a recommended
sentence must have judicial approval before it
is effective. N.C. Gen. Stat. § 15A-1023(b)
(1999). “It is well established in this State
that a lack of judicial approval renders a
proposed plea agreement 'null and void.'” The
statute further provides that “[a] decision by
the judge disapproving a plea arrangement is
not subject to appeal.” N.C. Gen. Stat. §
15A-1023(b).
State v. Santiago, 148 N.C. App. 62, 68, 557 S.E.2d 601, 605
(2001)(citation omitted). Defendant argues that he is entitled to
appeal from the rejection of a plea agreement under N.C. Gen. Stat.
§ 15A-1023(b) when the trial court fails to inform the defendant of
the reasons for rejecting the agreement or fails to specifically
inform the parties of their right to negotiate a new agreement as
required by that statute.
We have carefully reviewed the record in this matter, and find
that it does not support defendant's assertions of what transpired
in front of Judge Boner. The record clearly shows that Judge Boner
rejected the plea because he did not agree with the agreed upon
sentence, and so advised the parties. Further, the language of
N.C. Gen. Stat. § 15A-1023(b) is clear and unequivocal: “A decision
by the judge disapproving a plea bargain is not subject to appeal.”
Defendant has no right of appeal from Judge Boner's rejection of
the plea arrangement. This assignment of error is without merit.
In defendant's second assignment of error he argues the trial
court erred in rejecting defendant's request that he instruct the
jury on accident. We disagree. “The trial court has a duty to instruct the jury on all
substantial features of the case arising on the evidence. All
defenses arising from the evidence presented during trial,
including the defense of accident, are substantial features of a
case and therefore warrant instructions.” State v. Garrett, 93 N.C.
App. 79, 82, 376 S.E.2d 465, 467 (1989)(citations omitted).
The instruction that defendant requested, N.C.P.I. Crim.
307.11, states in relevant part:
When evidence has been offered that tends to
show that the alleged assault was accidental
and you find that the injury was in fact
accidental, the defendant would not be guilty
of any crime even though his acts were
responsible for the victim's injury. An
injury is accidental if it is unintentional,
occurs during the course of lawful conduct,
and does not involve culpable negligence.
Culpable negligence is such gross negligence
or carelessness as imparts a thoughtless
disregard of consequences or a heedless
indifference to the safety and rights of
others.
In the instant case, defendant admits that he made a decision to
threaten Harris with a loaded pistol, and in fact admits firing the
loaded pistol over Harris' head for the purpose of frightening him.
The injury Harris sustained as a result of defendant's actions
cannot be deemed “unintentional” under the definition of that term
as stated in the requested instruction.
First, defendant was undisputedly guilty of “such gross
negligence or carelessness as imparts a thoughtless disregard of
consequences or a heedless indifference to the safety and rights of
others” when he fired a shot over Harris. Second, by threatening
Harris with a loaded gun, without justification or excuse,defendant was committing an unlawful act (e.g. assault with a
deadly weapon under N.C. Gen. Stat. § 14-33(c)(1) (2004)). Our
Supreme Court has reasoned on facts remarkably similar to those at
hand:
The evidence is thus undisputed that the
defendant sought out the victim, that the
defendant intentionally confronted the victim
with a loaded firearm, that the defendant
assaulted the victim, and that the gun was in
the defendant's hand when two bullets, one of
which entered the victim's body, were fired
from it. “The fact that the defendant claims
now that he did not intend the shooting does
not cleanse him of culpability and thus give
rise to a defense of accident.” Where, as
here, the evidence is uncontroverted that the
defendant was engaged in unlawful conduct and
acted with a wrongful purpose when the killing
occurred, the trial court does not err in
refusing to submit the defense of accident.
State v. Riddick, 340 N.C. 338, 343, 457 S.E.2d 728, 731-32
(1995)(citation omitted); see also State v. Walker, 34 N.C. App.
485, 487, 238 S.E.2d 666, 667 (1977). This assignment of error is
without merit.
In defendant's third assignment of error he argues that the
trial court committed plain error, by failing to instruct the jury
on lesser included offenses of attempted first degree murder. We
disagree.
At trial, the only lesser included offense requested by
defendant was assault with a deadly weapon inflicting serious
injury. The trial court determined that this was not a lesser
included offense of attempted first-degree murder, and defendant
does not contest that ruling. Rather, defendant now argues that
the trial court committed plain error by failing to instruct thejury on its own initiative on the lesser included offense of
attempted voluntary manslaughter, because defendant was acting
under the heat of passion when he shot Harris.
When there is evidence of guilt of a lesser
offense, a defendant is entitled to have the
trial court instruct the jury with respect to
that lesser included offense even though the
defendant makes no request for such an
instruction.
State v. Lang, 58 N.C. App. 117, 118, 293 S.E.2d 255, 256
(1982)(citation omitted). However, a “defendant is entitled to
have a lesser included offense submitted to the jury only when
there is evidence to support that lesser included offense.” State
v. Smith, 351 N.C. 251, 267, 524 S.E.2d 28, 40 (2000)(citation
omitted). “If the State's evidence is sufficient to fully satisfy
its burden of proving each element of the greater offense and there
is no evidence to negate those elements other than defendant's
denial that he committed the offense, defendant is not entitled to
an instruction on the lesser offense.” Id. at 267-68, 524 S.E.2d
28, 40 (citation omitted).
“Voluntary manslaughter is a lesser included offense of murder
and is defined as the unlawful killing of a human being without
malice, premeditation or deliberation. Killing another 'while
under the influence of passion or in the heat of blood produced by
adequate provocation' is voluntary manslaughter.” State v. Long, 87
N.C. App. 137, 141, 360 S.E.2d 121, 123 (1987)(citations omitted).
The provocation sufficient to reduce murder to voluntary
manslaughter must be both great and immediate. See State v. Ward,
286 N.C. 304, 312, 210 S.E.2d 407, 413 (1974), death penaltyvacated by 428 U.S. 903, 49 L.Ed. 2d 1207 (1976)(citations
omitted). “The law extends its indulgence to a transport of
passion justly excited and to acts done before reason has time to
subdue it; the law does not indulge revenge or malice, no matter
how great the injury or grave the insult which first gave it
origin.” Id. at 313, 210 S.E.2d at 414 (citations omitted). For
example, in order for adultery to reduce murder to voluntary
manslaughter, one spouse must find the other “in the very act of
intercourse, or under circumstances clearly indicating that the act
had just been completed, or was 'severely proximate.'” Id. at
312-13, 210 S.E. 2d at 413-14.
In the instant case, there are three reasons why there was not
sufficient evidence of provocation to support submission of a
voluntary manslaughter instruction: (1) defendant merely had a
suspicion that Harris had taken his money, see Ward, 286 N.C. at
313, 210 S.E. 2d at 414; (2) the act, if it in fact occurred at
all, had occurred hours before, see Id. at 312-13, 210 S.E. 2d at
413-14, and (3) a misdemeanor larceny is simply not sufficient
provocation to warrant a reduction from attempted first-degree
murder to attempted voluntary manslaughter, see State v. Rogers,
323 N.C. 658, 667, 374 S.E.2d 852, 858 (1989).
We note that although defendant did not make this argument in
either his assignments of error in the record or his brief, he
argues in his reply brief that there was sufficient provocation
immediately preceding the shooting. Defendant argues that his
testimony that he and Harris “did have words. . . . we spewed backand forth” rises to the level of adequate legal provocation to
mandate giving an instruction on attempted voluntary manslaughter.
We hold that even if an argument did take place, it would not
justify an instruction on voluntary manslaughter. Mere words are
insufficient provocation, “as language, however abusive, neither
excuses nor mitigates the [attempted] killing, and the law does not
recognize circumstances as a legal provocation which in themselves
do not amount to an actual or threatened assault.” State v. Watson,
287 N.C. 147, 154, 214 S.E.2d 85, 90 (1975). This assignment of
error is without merit.
In his final assignment of error defendant argues that there
was insufficient evidence presented at trial to convict him of
attempted first-degree murder, and thus the trial court should have
allowed his motion to dismiss. We disagree.
When ruling on a motion to dismiss in a
criminal trial, the court must consider the
evidence in the light most favorable to the
State and give to the State the benefit of
every reasonable inference which may be drawn
from the evidence. The motion is properly
denied if there is substantial evidence of
each essential element of the crime alleged in
the indictment or of a lesser offense included
therein. “Substantial evidence is 'such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Long, 87 N.C. App. 137, 142, 360 S.E.2d 121, 124 (citations
omitted).
First-degree murder as alleged in the instant case is defined
as “the unlawful killing of a human being with malice,
premeditation, and deliberation.” State v. Myers, 299 N.C. 671,
677, 263 S.E.2d 768, 772 (1980). Defendant specifically arguesthat the evidence does not support finding the required elements of
premeditation and deliberation.
Premeditation means thought over beforehand
for some length of time, however short, but no
particular time is required for the mental
process of premeditation. Deliberation does
not require brooding or reflection for any
appreciable length of time, but imports the
execution of an intent to kill in a cool state
of blood without legal provocation, and in
furtherance of a fixed design. The requirement
of “cool state of blood” does not mean that
defendant must be calm or tranquil. An
unlawful killing is deliberate and
premeditated if done pursuant to a fixed
design to kill, notwithstanding that defendant
was angry or in an emotional state at the
time, unless such anger or emotion was such as
to disturb the faculties and reason.
Id, at 677, 263 S.E.2d at 772-73 (citations omitted).
The evidence presented by the State tends to show that
defendant, hours after he discovered his money was missing,
traveled to Harris' home to confront him. On the way, defendant
loaded the pistol he had brought with him. Once defendant's
girlfriend had drawn Harris out of his home, defendant approached
him, raised his gun, and fired two shots at Harris. Though
defendant contends it was never his intention to shoot Harris,
merely to scare him, the State offered the testimony of the other
two eyewitnesses which tends to show defendant aimed the gun
directly at Harris' face before he fired the second shot. There
was ample evidence presented at trial such that “a reasonable mind
might accept [it] as adequate to support” the verdict. This
assignment of error is without merit. Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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